John Marshall Harlan’s Unpublished Opinions: Reflections of a Supreme Court at Work

Abstract

John Marshall Harlan’s Unpublished Opinions Reflections of a Supreme Court at Work David M. O’Brien Tall, courtly, and unfailingly courteous, Justice John Marshall Harlan was “the personification of a New York patrician. He looked and acted like one,” recalls Justice Harry Blackmun, “at once soft and polite, but with steel beneath it.”1 A grandson named after the other JusticeJohn Marshall Harlan, who sat on the Court from 1877 to 1911, the second Harlan was born on May 20, 1899. His father was a prominent attorney in Chicago, Illinois. After attending Princeton University as an undergraduate, he spent three years studying jurisprudence as a Rhodes Scholar at Balliol College in Oxford, England, and later earned his law degree at NewYork LawSchool in 1924. For a quarter of a century, then, he practiced law in a leading Wall Street law firm, periodically taking leaves to serve as an assistant U.S. attorney, trial prosecutor, and chiefcounsel for the New York State Crime Commission. In 1954, Republican President Dwight D. Eisenhower appointed him to the Court of Appeals for the Second Circuit. Less than a year later, following the untimely death of Justice Robert H. Jackson, he was elevated to the Supreme Court, where he served until September 1971.2 On the Supreme Court, Harlan won respect for more than just his old-world charm and dedication. Justice William J. Brennan, for one, praised his “precisely stated views at con­ ference,” “extraordinarily wonderful opinions,” and “profound understanding of the Constitution.”3 In the tradition ofJustices Oli­ ver Wendell Holmes, Louis D. Brandeis, and Felix Frankfurter, Harlan was a “judicial con­ servative” and advocate of “judicial self-re­ straint.”4 His devotion to taking each case on its own merits, meticulous attention to details, and vigilant guard against the Court’s over­ reaching when deciding cases, made him a “lawyer’sjudge.”5 As one ofhis lawclerks, who later served as chairman of the American Civil Liberties Union, Professor Norman Dorsen, observed: Few Justices have so painstakingly or suc­ cessfully explained theirpremises and line of argument, andfew in the Court’s entire his­ tory are as safe as he from the charge that judicial opinions are no more than fiats ‘accompanied by little orno effort to support them in reason. 6 John Marshall Harlan, who served on the Court from 1954 to 1971, has been described as unfailingly courteous and old fashioned in manner. Justice Harry A. Blackmun calledhim “the personification ofa NewYork patrician.” 28 JOURNAL 1991 During sixteen-and-one-half Terms (from 1955 to 1971), Harlan wrote his fair share of the Court’s opinions. In his time on the Bench, the Court disposed of 39,663 cases, handing down 1,931 full written opinions. Harlan wrote 176 opinions for the Court (or 9.1 percent of the cases disposed by full written opinion). He also published 173 concurrences, 289 dissents, and 82 separate opinions (in which he concurred and dissented in part), as well as individual statements in another 182 cases, along with 47 other opinions written in his capacity as circuit justice for the U.S. Court of Appeals for the Second Circuit. The 902 opinions he published altogether, in which Harlan publicly explained his views and laid out his judicial philosophy, amount to more than 46 percent of the cases disposed by full-written opinion during his ten­ ure.7 In addition, he left behind some impor­ tant off-the-bench speeches and articles, pro­ viding insight into the value of oral argumenta­ tion, the internal operation of the Court as an institution,9 and his views on the tradition and role of the judiciary in a democratic society.10 Justice Harlan’s legacy, of course, lies marily in his published works. They reveal an evolution in his judicial philosophy and exam­ ine some ofthe great controversies confronting the Court and the country during the Cold War in the late 1950s, throughout the turbulent 1960s, and at thebeginning ofthe 1970s.Among his many notable opinions for the Court are Cohen v. California,11 reaffirmingthe principle of First Amendment freedom of speech, and Boddie v. Connecticut,12 striking down under the Fourteenth Amendment’s Due Process Clause Connecticut...